Common use of Effect on Company Capital Stock Clause in Contracts

Effect on Company Capital Stock. (i) At the Effective Time, by virtue of the First Merger and without any further action on the part of Parent, Merger Subs, the Company or the Company Stockholders, upon the terms and subject to the conditions set forth in Section 1.9 and throughout this Agreement, including the provisions set forth in Section 4.2(f) and Article VII hereof, each share of Company Capital Stock (other than any Cancelled Shares and Dissenting Shares) that is issued and outstanding immediately prior to the Effective Time shall be cancelled and extinguished and shall be converted automatically into the right to receive upon the due surrender of duly executed Exchange Documents in the manner set forth in Section 1.9(b), (i) at the Closing, in accordance with Section 1.9, (A) the Per Share Consideration (without interest thereon), minus (B) the Per Share Escrow Amount, minus (C) the Per Share Expense Fund Amount, (ii) any disbursements of Escrow Cash and Escrow Shares required to be made from the Escrow Fund with respect to such share of Company Capital Stock to the former holder thereof (based on such holder’s Pro Rata Share of the released amount), without interest in accordance with Section 7.4, (iii) any disbursements of cash and/or shares of Parent Common Stock required to be made in connection with the Post-Closing Excess Amount (if any) with respect to such share of Company Capital Stock to the former holder thereof (based on such holder’s Pro Rata Share of the Post-Closing Excess Amount), without interest, in accordance with Section 1.15(e) and (iv) any cash disbursements required to be made from the Expense Fund Account with respect to such share of Company Capital Stock to the former holder thereof (based on such holder’s Pro Rata Share of the released amount), without interest, in accordance with Section 7.6(c). Each share of Parent Common Stock issuable in the First Merger, or any other securities issued in respect of such shares upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall be book-entry security entitlements. (ii) Notwithstanding the foregoing, if the Closing Per Share Amount payable in respect of the shares of a particular series of Company Preferred Stock in accordance with Section 1.7(a)(i) is less than the Per Share Liquidation Preference for such series (with the shares of Parent Common Stock valued at the Parent Common Stock Closing Price for purposes of this Section 1.7(a)(ii)), then the portion of the Total Merger Consideration payable with respect to each such share of Company Preferred Stock will be an amount equal to the Per Share Liquidation Preference applicable to such share of Company Preferred Stock, and the payments to the other Company Securityholders with respect to their shares of Company Capital Stock, Company Options and Company Warrant will be appropriately adjusted hereunder to take into account such payments and to provide for the payment of the remaining portion of the Total Merger Consideration (if any) in accordance with the Certificate of Incorporation and the terms of this Agreement. Any payments made in respect of any such Per Share Liquidation Preference shall be in the same relative proportion of cash and stock payable to the other Accredited Investors (if the holder is an Accredited Investor) or Unaccredited Investors (if the holder is an Unaccredited Investor) with respect to their shares of Company Capital Stock, with appropriate adjustments to take into account the fact that the amount per share being paid will be different between the affected series and the other series and classes of Company Capital Stock. The foregoing shall not limit in any way the obligations of any holder of any such affected series of Company Preferred Stock as a Company Indemnitor hereunder, other than the obligation to contribute to the Escrow Fund; provided that any such holder shall still contribute to the Expense Fund. All of the terms and conditions of this Agreement will be deemed to be modified to give effect to the foregoing treatment mutatis mutandis (including the Pro Rata Share definition and other applicable defined terms), and the Allocation Schedule will be prepared to reflect the foregoing. Notwithstanding the foregoing, in no event shall this Section 1.7(a)(ii) increase (A) the Total Merger Consideration that would otherwise be payable by Parent pursuant to this Agreement, (B) the aggregate number of shares of Parent Common Stock that would otherwise be issuable by Parent to holders of Company Securities pursuant to this Agreement or (C) the aggregate amount of the cash that would otherwise be payable by Parent to holders of Company Securities pursuant to this Agreement.

Effect on Company Capital Stock. (i) At the Effective Time, by virtue of the First Merger and without any further action on the part of Parent, the holders of Company Capital Stock or Parent Common Stock: (a) Merger Subs, the Consideration for Company or the Capital Stock. Each share of Company Stockholders, upon the terms Common Stock and subject to the conditions set forth in Section 1.9 and throughout this Agreement, including the provisions set forth in Section 4.2(f) and Article VII hereof, each share of Company Capital Preferred Stock (other than any Cancelled Shares and Dissenting Shares) that is issued and outstanding immediately prior to the Effective Time shall (other than shares to be cancelled canceled in accordance with Section 3.1(c)) shall, at the Effective Time, be exchanged for and extinguished and shall be converted automatically into the right to receive upon the due surrender of duly executed Exchange Documents in the manner set forth in Section 1.9(b), (i) at the Closing, in accordance with Section 1.9, (A) the Per Share Consideration (without interest thereon), minus (B) the Per Share Escrow Amount, minus (C) the Per Share Expense Fund Amount, (ii) any disbursements of Escrow Cash and Escrow Shares required to be made from the Escrow Fund with respect to such share of Company Capital Stock to the former holder thereof (based on such holder’s Pro Rata Share of the released amount), without interest in accordance with Section 7.4, (iii) any disbursements of cash and/or shares of Parent Common Stock required to be made in connection with the Post-Closing Excess Amount (if any) with respect to such share of Company Capital Stock to the former holder thereof (based on such holder’s Pro Rata Share of the Post-Closing Excess Amount), without interest, in accordance with Section 1.15(e) and (iv) any cash disbursements required to be made from the Expense Fund Account with respect to such share of Company Capital Stock to the former holder thereof (based on such holder’s Pro Rata Share of the released amount), without interest, in accordance with Section 7.6(c). Each share of Parent Common Stock issuable in the First Merger, or any other securities issued in respect of such shares upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall be book-entry security entitlements. (ii) Notwithstanding the foregoing, if the Closing Per Share Amount payable in respect of the shares of a particular series of Company Preferred Stock in accordance with Section 1.7(a)(i) is less than the Per Share Liquidation Preference for such series (with the shares of Parent Common Stock valued at the Parent Common Stock Closing Price for purposes of this Section 1.7(a)(ii)), then the portion of the Total Merger Consideration payable with respect Ratio applicable to each such share of Company Preferred Common Stock will be an amount equal to the Per Share Liquidation Preference applicable to such share of or Company Preferred Stock, as the case may be, of (i) that number of validly issued, fully paid and the payments non-assessable shares of Parent Common Stock, rounded to the other Company Securityholders with respect to their shares of Company Capital Stocknearest thousandth, Company Options and Company Warrant will be appropriately adjusted hereunder to take into account such payments and to provide for the payment of the remaining portion of the Total Merger Consideration (if any) in accordance with the Certificate of Incorporation and the terms of this Agreement. Any payments made in respect of any such Per Share Liquidation Preference shall be in the same relative proportion of cash and stock payable equal to the other Accredited Investors quotient derived by dividing $75 million by the Average Price of Parent Common Stock (if the holder is an Accredited Investor"EXCHANGE RATIO") or Unaccredited Investors (if the holder is an Unaccredited Investor) together with respect to their shares any cash in lieu of Company Capital Stock, with appropriate adjustments to take into account the fact that the amount per share being paid will be different between the affected series and the other series and classes of Company Capital Stock. The foregoing shall not limit in any way the obligations of any holder of any such affected series of Company Preferred Stock as a Company Indemnitor hereunder, other than the obligation to contribute to the Escrow Fund; provided that any such holder shall still contribute to the Expense Fund. All of the terms and conditions of this Agreement will be deemed to be modified to give effect to the foregoing treatment mutatis mutandis (including the Pro Rata Share definition and other applicable defined terms), and the Allocation Schedule will be prepared to reflect the foregoing. Notwithstanding the foregoing, in no event shall this Section 1.7(a)(ii) increase (A) the Total Merger Consideration that would otherwise be payable by Parent pursuant to this Agreement, (B) the aggregate number of fractional shares of Parent Common Stock that would otherwise to be issuable by Parent to holders of Company Securities paid pursuant to Section 3.2(d)), less that number of shares, if any, in the Escrow Account (A) returned to Parent or sold pursuant to the indemnification obligations of the Company Stockholders contained in Article VIII or (B) returned to Parent pursuant to Section 3.3 of this Agreement, and (ii) cash of $75 million less the amount of (A) Company Debt and (B) any cash in the Escrow Account that is remitted to Parent pursuant to the indemnification obligations of the Company Stockholders contained in Article VIII or returned to Parent pursuant to Section 3.3 of this Agreement (the "CASH MERGER CONSIDERATION"). The shares of Parent Common Stock described in clause (i) above and the Cash Merger Consideration described in clause (ii) above are collectively referred to herein as the "MERGER CONSIDERATION". If, prior to the Effective Time, Parent should split or (C) combine the aggregate amount of Parent Common Stock, or pay a stock dividend or other stock distribution in Parent Common Stock, then the cash that would otherwise Exchange Ratio shall be payable by Parent appropriately adjusted to holders of Company Securities pursuant to this Agreementreflect such split, combination, dividend or other distribution.

Effect on Company Capital Stock. (i) At the Effective Time, by virtue of the First Merger and without any further action on the part of Parent, Merger SubsSub, the Company or the holders of shares of Company StockholdersCapital Stock (the "STOCKHOLDERS"), each share of Company Capital Stock issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares) will be canceled and extinguished and be converted into the right to receive, upon surrender of the certificate representing such share of Company Capital Stock in the manner provided in Section 1.8 hereof, the Per Share Initial Merger Consideration and the Per Share Contingent Consideration, in each case upon the terms and subject to the conditions set forth in Section 1.9 and throughout this Agreement, including without limitation this Section 1.6 and the escrow provisions set forth in Section 4.2(f) and Article VII IX hereof, each share of Company Capital Stock (other than any Cancelled Shares and Dissenting Shares) that is issued and outstanding immediately prior to the Effective Time . The Per Share Initial Merger Consideration shall be cancelled payable in a combination of cash and extinguished and shall be converted automatically into the right to receive upon the due surrender shares of duly executed Exchange Documents in the manner set forth in Section 1.9(b)Parent Common Stock, with (i) at the Closing, in accordance with Section 1.9, cash portion (Athe "CASH CONSIDERATION") being an amount of cash equal to the product obtained by multiplying (x) the Per Share Initial Merger Consideration by (without interest thereon), minus (By) the Per Share Escrow Amount, minus (C) the Per Share Expense Fund Amount, Applicable Fraction and (ii) any disbursements the stock portion (the "STOCK CONSIDERATION") being a number of Escrow Cash and Escrow Shares required to be made from the Escrow Fund with respect to such share of Company Capital Stock to the former holder thereof (based on such holder’s Pro Rata Share of the released amount), without interest in accordance with Section 7.4, (iii) any disbursements of cash and/or shares of Parent Common Stock required to be made in connection with the Post-Closing Excess Amount (if any) with respect to such share of Company Capital Stock equal to the former holder thereof quotient obtained by dividing (based on such holder’s Pro Rata Share of the Post-Closing Excess Amount), without interest, in accordance with Section 1.15(ex) and (iv) any cash disbursements required to be made from the Expense Fund Account with respect to such share of Company Capital Stock to the former holder thereof (based on such holder’s Pro Rata Share of the released amount), without interest, in accordance with Section 7.6(c). Each share of Parent Common Stock issuable in the First Merger, or any other securities issued in respect of such shares upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall be book-entry security entitlements. (ii) Notwithstanding the foregoing, if the Closing Per Share Amount payable in respect of the shares of a particular series of Company Preferred Stock in accordance with Section 1.7(a)(i) is less than the Per Share Liquidation Preference for such series Initial Merger Consideration less the Cash Consideration by (with y) the Parent Average Closing Price. The Per Share Contingent Consideration shall be payable in shares of Parent Common Stock valued at the Parent Common Stock Average Closing Price for purposes of this as set forth in Section 1.7(a)(ii1.6(f)), then the portion of the Total Merger Consideration payable with respect to each such share of Company Preferred Stock will be an amount equal to the Per Share Liquidation Preference applicable to such share of Company Preferred Stock, and the payments to the other Company Securityholders with respect to their shares of Company Capital Stock, Company Options and Company Warrant will be appropriately adjusted hereunder to take into account such payments and to provide for the payment of the remaining portion of the Total Merger Consideration (if any) in accordance with the Certificate of Incorporation and the terms of this Agreement. Any payments made in respect of any such Per Share Liquidation Preference shall be in the same relative proportion of cash and stock payable to the other Accredited Investors (if the holder is an Accredited Investor) or Unaccredited Investors (if the holder is an Unaccredited Investor) with respect to their shares of Company Capital Stock, with appropriate adjustments to take into account the fact that the amount per share being paid will be different between the affected series and the other series and classes of Company Capital Stock. The foregoing shall not limit in any way the obligations of any holder of any such affected series of Company Preferred Stock as a Company Indemnitor hereunder, other than the obligation to contribute to the Escrow Fund; provided that any such holder shall still contribute to the Expense Fund. All of the terms and conditions of this Agreement will be deemed to be modified to give effect to the foregoing treatment mutatis mutandis (including the Pro Rata Share definition and other applicable defined terms), and the Allocation Schedule will be prepared to reflect the foregoing. Notwithstanding the foregoing, in no event shall this Section 1.7(a)(ii) increase (A) the Total Merger Consideration that would otherwise be payable by Parent pursuant to this Agreement, (B) the aggregate number of shares of Parent Common Stock that would otherwise be issuable by Parent to holders of Company Securities pursuant to this Agreement or (C) the aggregate amount of the cash that would otherwise be payable by Parent to holders of Company Securities pursuant to this Agreement.

Effect on Company Capital Stock. (i) At the Effective Time, by virtue of the First Merger and without any further action on the part of Parent, Merger SubsSub, the Company or the Company Stockholders, upon the terms and subject to the conditions set forth in Section 1.9 and throughout this Agreement, including the provisions set forth in Section 4.2(f: (i) and Article VII hereof, each share of Company Capital Common Stock (other than held in the treasury of the Company and each share of Company Common Stock owned by Parent or any Cancelled Shares and Dissenting Shares) that is issued and outstanding direct or indirect wholly owned subsidiary of Parent or of the Company immediately prior to the Effective Time shall be cancelled and extinguished without any conversion thereof, and no payment or distribution shall be made with respect thereto; (ii) each share of Company Common Stock issued and outstanding immediately prior to the Effective Time, including shares of the Company’s Series A Preferred Stock which are converted into shares of Company Common Stock immediately prior to the Effective Time (other than any shares of Company Common Stock to be canceled pursuant to Section 1.6(d)(i) and any Dissenting Shares) shall be converted into the right to receive, upon surrender of the certificate therefor in accordance with this Agreement: (A) an amount in cash, without interest, equal to the quotient obtained by dividing (1) the Closing Common Payment by (2) Company Closing Common Stock Denominator (other than any shares of Company Common Stock to be canceled pursuant to Section 1.6(d)(i)); and (B) an amount in cash, without interest, equal to the quotient obtained by dividing (1) the Escrow Common Amount (if any) released pursuant to the terms set forth in Article VI of this Agreement by (2) the Company Closing Common Stock Denominator (other than any shares of Company Common Stock to be canceled pursuant to Section 1.6(d)(i) and Company Closing Vested Options) (collectively, the “Per Share Common Merger Consideration”); (iii) each share of the Company’s Series C Preferred Stock issued and outstanding immediately prior to the Effective Time (other than any Dissenting Shares) shall be converted automatically into the right to receive upon the due surrender of duly executed Exchange Documents in the manner set forth in Section 1.9(b), (i) at the Closing, certificate therefor in accordance with Section 1.9this Agreement, (A) the Per Share Consideration (without interest thereon), minus (B) the Per Share Escrow Amount, minus (C) the Per Share Expense Fund Amount, (ii) any disbursements of Escrow Cash and Escrow Shares required to be made from the Escrow Fund with respect to such share of Company Capital Stock to the former holder thereof (based on such holder’s Pro Rata Share of the released amount), without interest an amount in accordance with Section 7.4, (iii) any disbursements of cash and/or shares of Parent Common Stock required to be made in connection with the Post-Closing Excess Amount (if any) with respect to such share of Company Capital Stock to the former holder thereof (based on such holder’s Pro Rata Share of the Post-Closing Excess Amount)cash, without interest, in accordance with Section 1.15(e) and (iv) any cash disbursements required to be made from the Expense Fund Account with respect to such share of Company Capital Stock to the former holder thereof (based on such holder’s Pro Rata Share of the released amount), without interest, in accordance with Section 7.6(c). Each share of Parent Common Stock issuable in the First Merger, or any other securities issued in respect of such shares upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall be book-entry security entitlements. (ii) Notwithstanding the foregoing, if the Closing Per Share Amount payable in respect of the shares of a particular series of Company Preferred Stock in accordance with Section 1.7(a)(i) is less than the Per Share Liquidation Preference for such series (with the shares of Parent Common Stock valued at the Parent Common Stock Closing Price for purposes of this Section 1.7(a)(ii)), then the portion of the Total Merger Consideration payable with respect to each such share of Company Preferred Stock will be an amount equal to the Per Share Liquidation Preference applicable to such share of Company Preferred StockSeries C Closing Consideration; and (B) an amount in cash, and the payments without interest, equal to the other Company Securityholders with respect to their shares of Company Capital Stock, Company Options and Company Warrant will be appropriately adjusted hereunder to take into account such payments and to provide for the payment of the remaining portion of the Total Merger Per Share Series C Escrow Consideration (if any) released pursuant to the terms set forth in Article VI of this Agreement (collectively, the “Per Share Series C Merger Consideration”); and (iv) each share of the Company’s Series B Preferred Stock issued and outstanding immediately prior to the Effective Time (other than any Dissenting Shares) shall be converted automatically into the right to receive upon surrender of the certificate therefor in accordance with the Certificate of Incorporation and the terms of this Agreement. Any payments made in respect of any such Per Share Liquidation Preference shall be in the same relative proportion of cash and stock payable to the other Accredited Investors (if the holder is an Accredited Investor) or Unaccredited Investors (if the holder is an Unaccredited Investor) with respect to their shares of Company Capital Stock, with appropriate adjustments to take into account the fact that the amount per share being paid will be different between the affected series and the other series and classes of Company Capital Stock. The foregoing shall not limit in any way the obligations of any holder of any such affected series of Company Preferred Stock as a Company Indemnitor hereunder, other than the obligation to contribute to the Escrow Fund; provided that any such holder shall still contribute to the Expense Fund. All of the terms and conditions of this Agreement will be deemed to be modified to give effect to the foregoing treatment mutatis mutandis (including the Pro Rata Share definition and other applicable defined terms), and the Allocation Schedule will be prepared to reflect the foregoing. Notwithstanding the foregoing, in no event shall this Section 1.7(a)(ii) increase (A) the Total Merger Consideration that would otherwise be payable by Parent pursuant to this Agreement, (A) an amount in cash, without interest, equal to the Per Share Series B Closing Consideration; and (B) an amount in cash, without interest, equal to the aggregate number of shares of Parent Common Stock that would otherwise be issuable by Parent to holders of Company Securities Per Share Series B Escrow Consideration (if any) released pursuant to the terms set forth in Article VI of this Agreement or (C) collectively, the aggregate amount of the cash that would otherwise be payable by Parent to holders of Company Securities pursuant to this Agreement“Per Share Series B Merger Consideration”).

Effect on Company Capital Stock. (i) At the Effective Time, by virtue of the First Merger and without any further action on the part of Parent, First Merger SubsSub, the Company or the Company Stockholders, upon the terms and subject to the conditions set forth in Section 1.9 and throughout this Agreement, including the provisions set forth in Section 4.2(f) and Article VII hereof, each share of Company Capital Stock (other than any Cancelled Shares and Dissenting Shares) that is issued and outstanding immediately prior to the Effective Time (excluding any shares of Company Capital Stock to be canceled pursuant to Section 2.6(b)(ii) and any Dissenting Shares) shall be cancelled canceled and extinguished and shall be converted automatically into the right to receive receive, upon the due surrender of duly executed Exchange Documents in the manner set forth in Section 1.9(b), (i) at the Closing, in accordance with Section 1.9, (A) the Per Share Consideration (without interest thereon), minus (B) the Per Share Escrow Amount, minus (C) the Per Share Expense Fund Amount, (ii) any disbursements of Escrow Cash and Escrow Shares required to be made from the Escrow Fund with respect to certificates representing such share of Company Capital Stock to the former holder thereof (based on such holder’s Pro Rata Share Stock, together with a duly executed and completed Letter of the released amount), without interest in accordance with Section 7.4, (iii) any disbursements of cash and/or shares of Parent Common Stock required to be made in connection with the Post-Closing Excess Amount (if any) with respect to such share of Company Capital Stock to the former holder thereof (based on such holder’s Pro Rata Share of the Post-Closing Excess Amount), without interestTransmittal, in accordance with the manner provided in Section 1.15(e2.8: (A) and (iv) any cash disbursements required to be made from the Expense Fund Account with respect to such share of Company Capital Stock to the former holder thereof (based on such holder’s Pro Rata Share of the released amount), without interest, in accordance with Section 7.6(c). Each share of Parent Common Stock issuable in the First Merger, or any other securities issued in respect case of such shares upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall be book-entry security entitlements. (ii) Notwithstanding the foregoing, if the Closing Per Share Amount payable in respect of the shares of a particular series of Company Preferred Stock in accordance with Section 1.7(a)(i) is less than the Per Share Liquidation Preference for such series (with the shares of Parent Common Stock valued at the Parent Common Stock Closing Price for purposes of this Section 1.7(a)(ii)), then the portion of the Total Merger Consideration payable with respect to each such share of Company Preferred Stock will be an amount equal to the Per Share Liquidation Preference applicable to such share of Company Preferred Stock, and the payments to the other Company Securityholders with respect to their Accredited Investor that owns shares of Company Capital Stock, Company Options and Company Warrant will be appropriately adjusted hereunder (i) the Per Common Share Consideration, minus (ii) an amount of cash equal to take into account such payments and to provide for the payment of the remaining portion of the Total Merger Consideration (if any) in accordance with the Certificate of Incorporation and the terms of this Agreement. Any payments made in respect of any such Per Share Liquidation Preference shall Escrow Amount multiplied by the Cash Consideration Percentage, to be in the same relative proportion of cash withheld and stock payable to the other Accredited Investors (if the holder is an Accredited Investor) or Unaccredited Investors (if the holder is an Unaccredited Investor) with respect to their shares of Company Capital Stock, with appropriate adjustments to take into account the fact that the amount per share being paid will be different between the affected series and the other series and classes of Company Capital Stock. The foregoing shall not limit in any way the obligations of any holder of any such affected series of Company Preferred Stock as a Company Indemnitor hereunder, other than the obligation to contribute contributed to the Escrow Fund; provided that any such holder shall still contribute to the Expense Fund. All of the terms and conditions of this Agreement will be deemed to be modified to give effect to the foregoing treatment mutatis mutandis , minus (including the Pro Rata Share definition and other applicable defined terms), and the Allocation Schedule will be prepared to reflect the foregoing. Notwithstanding the foregoing, in no event shall this Section 1.7(a)(iiiii) increase (A) the Total Merger Consideration that would otherwise be payable by Parent pursuant to this Agreement, (B) the aggregate a number of shares of Parent Common Stock equal to (x) the Per Share Escrow Amount multiplied by the Stock Consideration Percentage, divided by (y) the Parent Common Stock Price, to be withheld and contributed to the Escrow Fund, minus (iv) the Per Share WC Escrow Amount, to be withheld and contributed to the WC Escrow Fund, plus (v) any Additional Per Share Consideration, subject to (and without limiting any rights or remedies of the Parent Indemnified Parties under this Agreement) the obligation of the Company Stockholder that would otherwise owns such share of Company Capital Stock immediately prior to the Effective Time to return to Parent or the applicable Parent Indemnified Parties the amount so received as a result of such conversion to the extent such Company Stockholder has, at any time and from time to time, any unsatisfied payment obligations to such Parent Indemnified Parties pursuant to, and subject to the terms and conditions of, Section 2.9(b)(iii) and Article IX; provided, that the Parent Common Stock to be issuable put in escrow or delivered to an Accredited Investor shall in each case be rounded down to the nearest whole number of shares after aggregating all shares put in escrow or delivered to a Company Securityholder, as applicable; and (B) in the case of a Company Stockholder that is a Non-Accredited Investor that owns shares of Company Capital Stock, cash in the amount of (i) the Non-Accredited Per Common Share Consideration minus (ii) an amount in cash equal to the Per Share Escrow Amount, to be withheld and contributed to the Escrow Fund, minus (iii) the Per Share WC Escrow Amount, to be withheld and contributed to the WC Escrow Fund, plus (iv) any Additional Per Share Consideration, subject to (and without limiting any rights or remedies of the Parent Indemnified Parties under this Agreement) the obligation of the Company Stockholder that owns such share of Company Capital Stock immediately prior to the Effective Time to return to Parent or the applicable Parent Indemnified Parties the amount so received as a result of such conversion to the extent such Company Stockholder has, at any time and from time to time, any unsatisfied payment obligations to such Parent Indemnified Parties pursuant to, and subject to the terms and conditions of, Section 2.9(b)(iii) and Article IX. (ii) Each share of Company Capital Stock held in the treasury of the Company or by Parent or the Merger Subs immediately prior to holders of Company Securities pursuant to this Agreement the Effective Time shall be canceled and extinguished without any conversion thereof and no payment or (C) the aggregate amount of the cash that would otherwise distribution shall be payable by Parent to holders of Company Securities pursuant to this Agreementmade with respect thereto.

Effect on Company Capital Stock. (i) At As of the Effective Time, by virtue of the First Merger and without any further action on the part of Parent, Merger Subs, the Company or the Company Stockholders, upon the terms and subject to the conditions set forth in Section 1.9 and throughout this Agreement, including the provisions set forth in Section 4.2(f) and Article VII hereof, each share holders of any Company Capital Stock (other than each a “Stockholder,” and collectively, the “Stockholders”) or any Cancelled Shares and Dissenting Sharesholders of capital stock of MergerCo: (a) that is All shares of common stock, par value $0.001 per share, of MergerCo issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into 1,000 fully paid and nonassessable shares of common stock, par value $0.001 per share, of the Surviving Company following the Merger, and such shares shall constitute the only outstanding shares of capital stock of the Surviving Company. (b) Each share of (i) Company Capital Stock that is owned by the Company, by Parent, by MergerCo, or by any other wholly owned subsidiary of Parent and (ii) Class B Common Stock, shall automatically be canceled and retired and shall cease to exist, and no cash or other consideration shall be delivered or deliverable in exchange therefor. (c) Each share of Class A Common Stock issued and outstanding immediately prior to the Effective Time, including each share of Class A Common Stock issuable upon automatic conversion of any Preferred Stock prior to the Effective Time in accordance with Article Fourth, Section 5 of the Certificate of Incorporation (other than shares to be cancelled in accordance with Section 2.6(b) and extinguished any Dissenting Shares) will, by virtue of the Merger and shall without any action on the part of the holder thereof, be converted automatically into the right to receive upon the due surrender of duly executed Exchange Documents in the manner set forth in Section 1.9(b), (i) at the Closing, in accordance with Section 1.9, (A) the Per Share Consideration (without interest thereon), minus (B) the Per Share Escrow Amount, minus (C) the Per Share Expense Fund Amount, (ii) any disbursements of Escrow Cash and Escrow Shares required to be made from the Escrow Fund with respect to such share of Company Capital Stock to the former holder thereof (based on such holder’s Pro Rata Share of the released amount), without interest in accordance with Section 7.4, (iii) any disbursements of cash and/or shares of Parent Common Stock required to be made in connection with the Post-Closing Excess Amount (if any) with respect to such share of Company Capital Stock to the former holder thereof (based on such holder’s Pro Rata Share of the Post-Closing Excess Amount)Consideration, without interest; provided, in accordance with Section 1.15(e) and (iv) any cash disbursements required to be made from the Expense Fund Account with respect to such share of Company Capital Stock to the former holder thereof (based on such holder’s Pro Rata Share of the released amount)however, without interest, in accordance with Section 7.6(c). Each share of Parent Common Stock issuable in the First Merger, or any other securities issued in respect of such shares upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall be book-entry security entitlements. (ii) Notwithstanding the foregoing, if the Closing Per Share Amount payable in respect of the shares of a particular series of Company Preferred Stock in accordance with Section 1.7(a)(i) is less than the Per Share Liquidation Preference for such series (with the shares of Parent Common Stock valued at the Parent Common Stock Closing Price for purposes of this Section 1.7(a)(ii)), then the portion of the Total Merger Consideration payable with respect to each such share of Company Preferred Stock will be an amount equal to the Per Share Liquidation Preference applicable to such share of Company Preferred Stock, and the payments to the other Company Securityholders with respect to their shares of Company Capital Stock, Company Options and Company Warrant will be appropriately adjusted hereunder to take into account such payments and to provide for the payment of the remaining portion of the Total Merger Consideration (if any) in accordance with the Certificate of Incorporation and the terms of this Agreement. Any payments made in respect of any such Per Share Liquidation Preference shall be in the same relative proportion of cash and stock payable to the other Accredited Investors (if the holder is an Accredited Investor) or Unaccredited Investors (if the holder is an Unaccredited Investor) with respect to their shares of Company Capital Stock, with appropriate adjustments to take into account the fact that the amount per share being paid will be different between the affected series and the other series and classes of Company Capital Stock. The foregoing shall not limit in any way the obligations of any holder of any such affected series of Company Preferred Stock as a Company Indemnitor hereunder, other than the obligation to contribute to the Escrow Fund; provided that any such holder shall still contribute to the Expense Fund. All of the terms and conditions of this Agreement will be deemed to be modified to give effect to the foregoing treatment mutatis mutandis (including the Pro Rata Share definition and other applicable defined terms), and the Allocation Schedule will be prepared to reflect the foregoing. Notwithstanding the foregoing, in no event shall this Section 1.7(a)(ii) increase (A) the Total Merger Consideration that would otherwise be payable by Parent pursuant to this AgreementSection 2.6(c) at the Effective Time shall be less the cash amount attributable to the Pro Rata Interest of such holder of Class A Common Stock with respect to such shares in the Indemnification Escrow Amount pursuant to Section 3.1(a)(ii) and Section 3.1(a)(iii), (Bthe Working Capital Escrow Amount pursuant to Section 3.1(a)(ii) and Section 3.1(a)(iii) and the aggregate number Securityholders’ Representative Reimbursement Amount pursuant to Section 3.1(a)(ii). As of the Effective Time, all such shares of Parent Class A Common Stock that would otherwise shall no longer be issuable outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a Class A Common Certificate (or Preferred Stock Certificate representing shares of Preferred Stock automatically converted into shares of Class A Common Stock prior to the Effective Time) shall cease to have any rights with respect thereto, except the right to receive (subject to any adjustments specified herein), upon the surrender of such Class A Common Certificate (or Preferred Stock Certificate, as the case may be) or the delivery of an affidavit as described in Section 3.1(d), the Per Share Common Consideration, without interest. (d) Each share of Special Stock issued and outstanding immediately prior to the Effective Time (other than shares to be cancelled in accordance with Section 2.6(b) and any Dissenting Shares) will, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive the Per Share Common Consideration, without interest; provided, however, the amount payable by Parent to holders of Company Securities pursuant to this Agreement or (CSection 2.6(d) at the aggregate Effective Time shall be less the cash amount attributable to the Pro Rata Interest of such holder of Special Stock with respect to such share in the Indemnification Escrow Amount pursuant to Section 3.1(a)(ii) and Section 3.1(a)(iii), the Working Capital Escrow Amount pursuant to Section 3.1(a)(ii) and Section 3.1(a)(iii) and the Securityholders’ Representative Reimbursement Amount pursuant to Section 3.1(a)(ii). As of the cash Effective Time, the share of Special Stock shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and the holder of the Special Stock Certificate shall cease to have any rights with respect thereto, except the right to receive (subject to any adjustments specified herein), upon the surrender of such Special Stock Certificate or the delivery of an affidavit as described in Section 3.1(d), the Per Share Common Consideration, without interest. (e) (i) Each share of Preferred Stock issued and outstanding immediately prior to the Effective Time (other than shares to be cancelled in accordance with Section 2.6(b), any Dissenting Shares, and shares of Preferred Stock that would otherwise have been properly surrendered to the Company for conversion into Class A Common Stock in accordance with Article Fourth, Section 5 of the Certificate of Incorporation immediately prior to the Effective Time) will, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive the Per Share Preferred Consideration, without interest; provided, however, the amount payable by Parent to holders of Company Securities pursuant to this AgreementSection 2.6(e)(i) at the Effective Time shall be less the cash amount attributable to the Pro Rata Interest of such holder of Preferred Stock with respect to such shares in the Indemnification Escrow Amount pursuant to Section 3.1(a)(ii) and Section 3.1(a)(iii), the Working Capital Escrow Amount pursuant to Section 3.1(a)(ii) and Section 3.1(a)(iii) and the Securityholders’ Representative Reimbursement Amount pursuant to Section 3.1(a)(ii). As of the Effective Time, all such shares of Preferred Stock shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a Preferred Stock Certificate representing such shares of Preferred Stock shall cease to have any rights with respect thereto, except the right to receive (subject to any adjustments specified herein), upon the surrender of such Preferred Stock Certificate or the delivery of an affidavit as described in Section 3.1(d), the Per Share Preferred Consideration, without interest.